DOCKET NO. 147-R10-195 NORMA JEAN LANE § BEFORE THE

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DOCKET NO. 147-R10-195
NORMA JEAN LANE
V.
GALVESTON INDEPENDENT
SCHOOL DISTRICT
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BEFORE THE
COMMISSIONER OF EDUCATION
§
THE STATE OF TEXAS
DECISION OF THE COMMISSIONER
Statement of the Case
The Commissioner of Education has jurisdiction of this appeal
pursuant to former Texas
Education Code §11.13.
On January 26, 1993, a fist fight between two
male students occurred in
Petitioner's classroom. Petitioner was struck by one of the students
during the disturbance.
Petitioner contends that because she attempted to notify the proper
authorities of her belief that
Central Middle School was unsafe, she was transferred from Central Middle
School to L.A.
Morgan Elementary School. Respondent denies the transfer, or any other
action, was taken in
retaliation for Petitioner's publication of the classroom disturbance.
Rather, Petitioner was
transferred because of conflict among the staff and the publicity
surrounding the fist fight that
occurred in her classroom.
A hearing was held before Lorraine J. Yancey, the Administrative
Law Judge appointed by
the Commissioner of Education. Petitioner was represented by Patrick D.
Lane, Party
Representative, Cleburne, Texas. Respondent was represented by Sherrill
H. Tompkins, Attorney
at Law, Galveston, Texas.
The record reflects that Respondent's decision to transfer
Petitioner was within the terms
of Petitioner's employment contract. Additionally, by June 1993, there
was such discord among
parents, teachers, and staff that Petitioner's vocal response to violence
in the Galveston schools
could not be viewed as a motivating or substantial factor in Respondent's
decision to transfer
Petitioner from the position of teacher at Middle Central School to the
position of teacher at L.A.
Morgan Elementary School. Under these circumstances, a personnel
transfer was in the best
interest of Petitioner and Respondent.
On May 14, 1996, the Administrative Law Judge issued a Proposal for
Decision
recommending that Petitioner's appeal be denied. No exceptions were
filed.
Findings of Fact
After due consideration of the evidence and matters officially
noticed, in my capacity as
Commissioner of Education, I make the following Findings of Fact:
1. At all times relevant to this appeal, Petitioner was employed by
Respondent as a
teacher.
2. On January 26, 1993, two male students in Petitioner's class
were involved in a fight.
While attempting to break up the fight, Petitioner was injured by one of
the students, Larian S.
She was treated for her injury(ies) in the emergency room at St. Mary's
Hospital. The emergency
room physician indicated that Petitioner would be unable to work for one
to seven days.
3. On January 27, 1993, in compliance with school policy,
Petitioner reported the fight
between the two students to Lieutenant Ted Justice, head of security at
Central Middle School.
4. On January 27, 1993, Petitioner filed a complaint with the
Galveston Police
Department. The complaint charged Larian S. with disrupting a classroom
and assault on a
teacher.
5. The fist fight in Petitioner's classroom on January 26, 1993,
was publicized in the
Galveston community, caused conflict among personnel within the school
district, and was
generally disruptive, as illustrated by the following events (and
Findings of Fact Nos. six, nine,
twelve below):
?
a) On Friday, January 29, 1993, the Galveston Daily News, published
an article
titled, "Teacher calls for end to school violence". The article was a
letter Petitioner
sent to the newspaper concerning the fist fight that occurred in her
classroom, the
effect of the fight on her emotional well-being, the response of the
parent whose child
was involved in the classroom fight, the need for security in the
schools, and her
suggestions as to how a private citizen, parents and students might get
involved to
help the district and the community change the violence in the city's
schools.
?
b) In February, 1993, the Galveston Daily News published a response
to Petitioner's
newspaper article on violence in the schools. The response "Parent tell
students' side
of story" was written by Donna Simpson, who is a school nurse with the
Galveston
Public schools and the mother of Larian S., one of the students involved
in the fist
fight in Petitioner's classroom. The article criticized Petitioner and
was supportive
of Donna Simpson's son.
?
c) In March, 1993, the Galveston Daily News published "Violent
students a concern
for all," an article written by the husband of another teacher at Central
Middle
School, Dr. Kelly Hetjmancik. This article described Donna Simpson as an
irate
parent trying to find an excuse and someone else to blame for her son's
actions, and
taking a cheap shot at one of Galveston's finest teachers.
6. On February 15, 1993, Petitioner filed a Level I grievance
against Officer Theodore
Justice alleging, in pertinent part: (1) Officer Justice was derelict in
performing his duties
concerning the fight in her classroom on January 26, 1993, because he
failed to discuss with
Petitioner the details of the incident or any of the circumstances
surrounding the fight; (2) he
illegally obtained and presented false, inaccurate information at the
student expulsion hearing; (3)
Officer Justice attempted to sabotage the expulsion hearings and make the
central administration
and Petitioner look unprofessional and unprepared; (4) Officer Justice's
actions were a form of
retaliation for Petitioner's stand against violence in the public
schools. Petitioner sent copies of her
Level I grievance concerning Officer Justice to the following persons:
Jim Pickett - Superintendent of Galveston Independent School District
Barbara McIlvain, Assistant Superintendent of Administration
Richard Lane, Director of Personnel
Elbert Clay, Chairman, Expulsion Hearing
Officer Justice, Director of Central Middle School Security
Jack Stork, Principal of Middle School
Edwin Bamberg, Assistant Principal, Central Middle School
Galveston District Attorney's Office
John Cole, Texas Federation of Teachers
7. By memorandum dated March 22, 1993, Petitioner filed a Level II
grievance against
Officer Justice because of the results of the student expulsion hearing
held on or before March 10,
1993. The Level II grievance hearing was held on March 29, 1993.
8. By memorandum dated April 12, 1993, Petitioner filed a request
for Level III grievance
to the board of trustees concerning the conduct of Officer Justice, its
impact on her professional
integrity and judgment, and the illegality of Officer Justice's
investigation and student testimony.
9. On or about April 15, 1993, Petitioner wrote a letter to the
Director of the Federal
Bureau of Investigation (FBI) expressing her concern for the safety of
the students, faculty and the
staff of the Galveston Independent School District and, in particular,
Central Middle School.
Petitioner sent copies of her letter to the FBI to the following persons:
Governor Ann Richards, State of Texas
Dr. Lionel Meno, Commissioner of Education
United States Attorney General's Office
Mike Guarino, District Attorney, Galveston County
Suzanne Schwab-Radcliffe, Assistant District Attorney, Galveston County
Mike Martin, State Representative
Captain Leo Singleton, Galveston Police Department
Galveston Independent School District (GISD) Board Members
Jack Stork, Principal, Central Middle School
Mary Patrick, Special Education Department, GISD
J. W. Weaver, Galveston Federation of Teachers
Lee Brewer, Texas Federation of Teachers
John O'Sullivan, Texas Federation of Teachers
John Cole, Texas Federation of Teachers
Ed Schwab, GISD Attorney
Terry Ketler, FBI, Southwestern Regional District Office
10. On May 14, 1993, Petitioner presented her grievance to
Respondent's board of
trustees. Respondent denied Petitioner's grievance against Officer
Justice at Level I, II, and III.
11. Petitioner presented no evidence that her performance appraisal
for the 1993-1994
school year was affected by her report of violence in the city's schools.
On May 20, 1993,
Respondent rated Petitioner's job performance as exceeding expectations
for the 1993-1994 school
year.
12. There is no evidence as to who was responsible for publishing
derogatory remarks
about Petitioner. In May, 1993, Petitioner entered the teachers' lounge
and discovered an 8 1/2" x
11" sheet of paper with a picture of a donkey and a picture of another
teacher pasted on the
donkey's belly. The words, "A**H*** OF THE MONTH" were printed below the
picture of the
donkey. Just below that message was the typed comment "lst Runner-Up,
Norman Lane and
"Picture Not Show, But Who Cares". Also typed on the sheet of paper was
the following:
CC:
PRESIDENT OF THE UNITED STATES
U.S. SENATE & CONGRESS
U.S. SUPREME COURT
GOVERNOR OF TEXAS
EDUCATION ASSOCIATION OF AMERICA
EVERY UNION THAT WILL ACKNOWLEDGE THIS PRESTIGIOUS AWARD
THE PUBLIC AND PRIVATE SCHOOL BOARDS OF AMERICA
J. EDGAR HOOVER, (WHO WOULDN'T CARE)
MIDDLE AGE CRISIS OF AMERICA
KIMBERLY CLARK CORP. (MAKERS OF DEPENDS)
EVERY DAILY NEWSPAPER IN AMERICA
ASS HOLES OF AMERICA, HALL OF FAME COMMITTEE
SANTA CLAUS ( SO HE CAN REMEMBER TO PASS YOUR ASS UP
ON CHRISTMAS)
BOZO (HE WAS DISAPPOINTED HE DIDN'T MAKE THE TOP Three
This Month)
NOTE: A SPEECH WOULD BE IN ORDER, BUT CONSIDERING THE WINNER, TIME WOULD
BE A
FACTOR. SO DO WHAT YOU DID TO GET THIS HONOR, SUBMIT YOUR ACCEPTANCE
SPEECH IN
WRITING .
CONGRATULATIONS
MAY 1993
13. By letter dated June 17, 1993, Respondent notified Petitioner
that the principal of
Central Middle School, Jack Stork, had recommended that it was in the
best interest of the
Galveston Public School District that Petitioner be transferred from
Central Middle School.
Specifically, Respondent transferred Petitioner to L. A. Morgan
Elementary School because of
discord among staff , parents, and community concerning the fist fight in
Petitioner's classroom.
14. On or about July 12, 1993, Petitioner was reassigned from
Central Middle School to
4th-grade teacher at L.A. Morgan Elementary School.
15. Petitioner presented no evidence that reassignment from Central
Middle School to a
4th-grade teaching position at L.A. Morgan Elementary School was an
adverse personnel action.
Petitioner did not suffer lost wages or benefits as a result of the
transfer to a different grade level.
16. Petitioner's employment contract provided for reassignment of
her position or duties.
17. Petitioner presented no evidence that Officer Theodore Justice
illegally obtained and
presented false, inaccurate information at the student expulsion hearing.
18. Petitioner presented no evidence that Respondent introduced
student testimony at a
student expulsion hearing without parental permission, in violation of
school policy.
Discussion
Petitioner's pleadings do not expressly allege a violation of free
speech under the Texas or
U. S. Constitution, or a violation of the whistleblowers act. Petitioner
contends: 1) Respondent
retaliated against her because she discussed with persons inside and
outside the school district her
belief that Central Middle School was unsafe for both students and
teachers; and 2) because she
filed grievances alleging that Officer Justice was derelict in performing
his duties concerning the
fight in her classroom on January 26, 1993, because he failed to discuss
with Petitioner the details
of the incident or any of the circumstances surrounding the fight, and
that he attempted to sabotage
the expulsion hearings.
FREEDOM OF SPEECH
Applying Mt. Healthy and its progeny to the facts of this appeal,
Petitioner has the burden
of establishing by a preponderance of the evidence that her conduct was
constitutionally protected,
and that this conduct was a substantial or motivating factor in
Respondent's final decision to
transfer her. Once Petitioner has shown that her constitutionally
protected conduct played a
substantial role in Respondent's decision, Respondent must show that it
would have reached the
same decision even in the absence of the protected conduct.
The state
may legitimately interfere
with the constitutionally protected conduct of a public school employee
only when the conduct
materially and substantially impedes the operation or effectiveness of
the educational program.
In
the realm of public school employment, the interests of the school
employee must be balanced with
the interest of the state in promoting efficiency in the education
services which it provides through
its school employees.
The evidence indicates that Petitioner was speaking on a matter of
public concern, safe
schools. Having made that determination, the ultimate inquiry is whether
Petitioner's
constitutionally protected conduct was a substantial or motivating factor
in Respondent's decision
to transfer Petitioner to an elementary school.
Clearly, Petitioner's
activities after January 26,
1993 altered her position as a victim of student violence to that of an
active opponent of violence in
the classroom. This public discussion of violence in the Galveston
schools was followed by intense
public criticism and antagonistic comments between a parent and
Petitioner, between family
members of other teachers and a parent, and among employees of
Respondent. See. Finding of
Fact No. 12.
By June, 1993, other persons and factors had so entered
the fray that Petitioner's
vocal response to violence in the Galveston schools could not be viewed
as the motivating or
substantial factor in Respondent's decision to transfer Petitioner from
the position of teacher at
Middle Central School to the position of teacher at L.A. Morgan
Elementary School.
Subjective feelings of displeasure are not cognizable as an adverse
personnel action.
Petitioner's employment contract provided for reassignment of her
position or duties. Petitioner
presented no evidence that reassignment from Central Middle School to a
position as a 4th-grade
teacher at L.A. Morgan Elementary School was an adverse personnel action.
Petitioner did not
suffer lost wages or benefits as a result of the transfer to a different
grade level. While the record
reflects that Petitioner did not request the reassignment and that she
was not pleased with it
because she had little notice and no opportunity to prepare the
appropriate teaching aids, Petitioner
had no property interest in her position at Central Middle School. Thus,
Respondent was not
required to continue her employment in that position.
See Jett v.
Dallas ISD., 798 F.2d 748 (5th
Cir. 1986), aff'd in part, 109 S.Ct. 2702 (1989). Under these
circumstances, a personnel transfer
was in the best interest of Petitioner and Respondent.
WHISTLEBLOWER ACT
The Texas Whistleblower Act ("the Act") prohibits a state or local
governmental body
from suspending or terminating the employment of, or otherwise
discriminating against, a public
employee who reports a violation of law to an appropriate law enforcement
authority if the
employee's report is made in good faith. Tex. Gov't Code Ann. Sec.
554.002 (Vernon 1994)
(Former Tex.Rev.Civ.Stat.Ann. art. 6252-16a, Sec. 2, repealed). The
standard of causation in a
whistleblower action is that the employee's protected conduct must be
such that, without it, the
employer's prohibited conduct would not have occurred when it did.
Petitioner is not required to
prove that her report of alleged illegal conduct was the sole reason for
the adverse action. Texas
Dept. of Human Services of State of Tex. v. Hinds, 904 S.W.2d 629 (Tex.
1995).
The Act defines "law" as a state or federal statute; an ordinance
of a local governmental
body; or a rule adopted under a statute or ordinance. Petitioner alleges
Respondent violated a
school policy. Under the Act, a violation of school policy does not meet
the definition of "law" as
defined under the Act. Further, Petitioner presented no evidence that
Officer Theodore Justice
illegally obtained and presented false, inaccurate information at the
student expulsion hearing,
introduced student testimony without parental permission, in violation of
school policy, or that
Respondent attempted to hide instances of on-campus student violence.
Petitioner's point of error
is overruled.
The record reflects that Petitioner has not proven by a
preponderance of the evidence that
she was affected by an adverse personnel action, or that her conduct
subsequent to January 26,
1993 was a motivating or substantial factor in Respondent's decision to
transfer her to an
elementary school. Accordingly, Petitioner's appeal is DENIED.
Conclusions of Law
After due consideration of the record, matters officially noticed,
and the foregoing Findings
of Fact, in my capacity as Commissioner of Education, I make the
following Conclusions of Law:
1. The Commissioner of Education has jurisdiction of this appeal
pursuant to former
Texas Education Code §11.13 (Vernon 1991)
2. Petitioner's vocal response to violence in the Galveston schools
was not a motivating or
substantial factor in Respondent's decision to transfer Petitioner from
the position of teacher at
Middle Central School to the position of teacher at L.A. Morgan
Elementary School.
3. Petitioner's transfer from middle school teacher to elementary
school teacher did not
infringe upon any property interests arising from her employment contract
with Respondent.
4. Petitioner's transfer from middle school teacher to elementary
school teacher was
neither arbitrary, capricious nor unlawful.
5. In compliance with former Texas Education Code, Subchapter I,
Discipline, Law and
Order, Section 21.308, Respondent determined that the safety of its
students and personnel
required security personnel and employs security personnel in the
district.
6. Petitioner's appeal is DENIED.
O R D E R
After due consideration of the record, matters officially noticed,
and the foregoing Findings
of Fact and Conclusions of Law, in my capacity as Commissioner of
Education, it is hereby
ORDERED that Petitioner's appeal be, and is hereby, DENIED.
SIGNED AND ISSUED THIS _______ day of
_________________________,1996.
______________________________________
MIKE MOSES
COMMISSIONER OF EDUCATION
Acts 1990, 71st Leg., 6th C.S., ch. 1, §2.22 eff. Sept. 1, 1990.
Mt. Healthy City School District Bd. of Educ. v. Doyle, 429 U.S. 274,
97 S.Ct. 568, 50 L.Ed.2d 471
(1977); Kirkland v. Northside Indep. School District, 713 F.2d 794, 799
(5th Cir. 1989); Burris v. Willis
Independent School District, 713 F.2d 1087, 1093 (5th Cir. 1983).
See Tinker v. Des Moines Independent Community School District, 393
U.S. 503, 89 S.Ct. 733, 32
L.Ed2d 731 (1969).
Pickering v. Board of Ed. of Township S.W. Dist. 391 U.S. 563, 88 S.
Ct. 1731 (1968).
This includes the bitter, sarcastic remarks directed to Petitioner
during a staff meeting by one of
Respondent's administrators. At the hearing, the administrator testified
that his less than subtle
innuendoes were directed to Petitioner and two other teachers. If the
Commissioner of Education had
jurisdiction to require an the administrator to apologize for less than
professional conduct, the remarks
made at that staff meeting would qualify for relief.
There is a presumption of causation in a whistleblower action when a
public employee's termination
occurs within 90 days of his reporting a violation of law.
The media is not an appropriate "law enforcement authority" under the
Act. See Garay v. County of
Bexar, 810 S.W.2d 760, 766-67 (Tex.App--San Antonio 1991, writ denied)
(statute not applicable to
nurse who reported alleged violations to newspaper columnist who later
published them).
In compliance with former Texas Education Code §21.308(a) Security
Personnel, Respondent
determined that the safety of its students and personnel required
additional security measures and
employed security personnel. Former Texas Education Code, Subchapter I.
Discipline, Law and Order,
Section 21.308(a) states: The governing board of any school district may
employ security personnel for
use in any school within its district when the board in its discretion
determines that the personnel are
necessary. If the governing board authorizes the security personnel to
carry weapon, the security
personnel must be commissioned peace officers. Notwithstanding numerous
media presentations of
violence in America and in our schools, the Galveston board of trustees'
adoption of a policy providing for
security personnel and their presence on campus was notice to students
and the community that violence
sometimes occurs on school property.
5
147-R10-195
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